ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  BC-2013-03921

  						COUNSEL:  YES

  						HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

The decedent’s Survivor Benefit Plan (SBP) election be changed to former spouse coverage.

RESUME OF THE CASE:

On 9 Oct 14, a similar appeal was considered and approved by the Board.  The Board relied upon an affirmative recommendation from AFPC/DPFFF indicating that absent a competing claimant (another spouse with a legal entitlement to SBP benefits), it would be appropriate to correct the decedent’s record to reflect he made a timely election for former spouse coverage within a year of his 2004 divorce from the applicant, naming the applicant as the beneficiary.  However, on 22 Jul 15, after a careful review and consideration of all factors involved, the Secretary of the Air Force (SECAF), in the exercise of her discretionary authority, declined to adopt the Board’s recommendation indicating the Board could not adequately investigate and rule on a matter where there are competing interests, and granting relief to the applicant would result in property being taken away from another party whose interests could not be represented through the AFBCMR process.  In this case, the Board could not conclusively rule out the possibility of a competing beneficiary being entitled to a refund of overpaid SBP premiums that were due to the Arrears of Pay (AOP) beneficiary because neither the decedent nor the applicant took timely action to convert the SBP coverage upon their divorce in 2004.  Accordingly, the application was denied.  For an accounting of the facts and circumstances surrounding the applicant’s appeal, and the rationale of the earlier recommendation by the Board, see Record of Proceedings; the SECAF’s Memorandum, with attachments, at Exhibit G.

On 24 Sep 15, the applicant, through counsel, requested reconsideration of her case and provided supporting documents from the executor of the decedent’s estate indicating that there are no other issues involving the estate and the estate has no further claim on any military benefits and especially on the Survivor Benefit allotment that was to be paid to the applicant monthly.  

The applicant’s complete submission, with attachments, is at Exhibit H.

On 23 Jun 16, Defense Finance and Accounting Service notified the Board that the AOP beneficiary (the two sons of the decedent) had not been paid in accordance with the Order of Precedence.

On 8 Aug 16, the applicant’s counsel provided affidavits from the AOP beneficiaries expressly relinquishing any interest they have in the refund of the overpaid SBP premiums included in the AOP (see Exhibit I).  

THE BOARD CONCLUDES THAT:

Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  We took notice of the applicant's complete submission in judging the merits of the case to include the supporting documents from the AOP beneficiaries, the legal heirs to the decedent’s estate, who now expressly waive their entitlement to the refund of SBP premiums included in the AOP.  Because the possibility of any competing interest has been eliminated, and we agree with the opinion and recommendation of the Air Force office of primary responsibility (OPR), we believe it is appropriate to correct the records in the interest of justice to indicate the deceased former member made a timely election for former spouse coverage, naming the applicant as the beneficiary, in accordance with the divorce decree.  Therefore, we recommend the applicant's records be corrected as indicated below.	

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the DECEASED FORMER MEMBER be corrected to show that on 3 December 2004, he elected former spouse coverage under the Survivor Benefit Plan based on a previous reduced level of retired pay, naming the APPLICANT as the former spouse beneficiary.  Approval should be contingent upon the recovery of any applicable premiums.

The following members of the Board considered AFBCMR Docket Number BC-2013-03921 in Executive Session on 23 Aug 16 under the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

All members voted to correct the records as recommended.  The following documentary evidence pertaining to AFBCMR Docket Number BC-2013-03921 was considered:

	Exhibit G.  ROP, with SECAF Memorandum, dated 22 Jul 15,
  w/atchs.
	Exhibit H.  RECON DD Form 149, dated 24 Sep 15, w/atchs.
	Exhibit I.  Counsel email w/affidavits, dated 8 Aug 16.